IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE M.F.A. NO.9296 OF 2012 (WC) BETWEEN:
SRI. SUBRAMANI S/O SRI. MANI AGE: 29 YEARS OCC: CAR DRIVER R/O NO.54, KANTEERAVA STADIUM, I MAIN, 2ND CROSS ROAD, PARIMALA NAGARA, BANGALORE – 560 086.
... APPELLANT (BY SMT. SUNITHA B.H.,FOR Sri. SURESH M.LATUR, ADVOCATES) AND 1. SRI. V.RAJENDRA S/O SRI. VENKATAPPA R/O NO.76, RAMAPURA MALUR TALUK KOLAR DISTRICT-563 130.
2. THE MANAGER IFFCO-TOKIO GEN. INS.CO.LTD., NO.41, II FLOOR, CRISTU COMPLEX, LAVELLE ROAD, BANGALORE-01.
(BY SRI.B.PRADEEP, ADVOCATE FOR R-2; NOTICE TO R1 D/W V/O/DTD 11/02/16) ... RESPONDENTS THIS MFA IS FILED U/S 30(1) OF W.C.ACT AGAINST THE JUDGMENT DATED:22.2.2012 PASSED IN WCA/ NFC/CR.NO.18/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISION-1, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is preferred under Section 30(1) of the Workmen’s Compensation Act, 1923, assailing the award dated 22.02.2012 passed by the Workmen’s Compensation Commissioner, Sub-Division I, Bengaluru.
2. By the impugned award, the Commissioner has granted compensation of Rs.3,58,798/- against respondent No.2 with 12% interest as damages for the personal injuries suffered by him allegedly during the course of employment.
3. For the purpose of convenience, parties will be referred hereafter with their ranks before the Commissioner.
4. The appellant/claimant filed the claim petition before the Commissioner contending that he was employed as driver in the Tata Sumo run by the respondent-company and on 27.01.2009 when he was driving the Tata Sumo bearing Registration No. KA-25-M-5108 from Goa towards Bengaluru along with passengers, near Chantra Village, Byadagi Taluk, Haveri District, the end joint of the vehicle was displaced, due to which the appellant lost control over the vehicle and the vehicle turned turtle. He has sustained Crush injury of Right Hand, Fracture Dislocation of Right Wrist-Radio Carpal Joints, Complete dislocation of Carpal bones, fracture of 1st Metacarpal and dislocation of MCP Joints and fracture of proximal phalanx of Index finger and other grievous injuries all over the body and suffered permanent disability. He further claims that he was aged about 26 years at the time of accident and was earning Rs.9,000/- per month including Batta.
5. In support of his claim, the claimant got examined himself as P.W.1 and the doctor as P.W.2. Respondent got marked Ex.R.1 and Ex.R.2 6. The Commissioner, on hearing the parties awarded compensation considering 70% as loss of earning capacity.
7. The appellant in the appeal memo has raised the following substantial questions of law:
“1.Whether the Commissioner for Workmen’s Compensation Commissioner is just in considering only 70% as loss of earning capacity as against 100% though there is clear evidence by the appellant and doctor that he has become disabled to do his earlier work or any other manual work ?
8. The learned counsel for the appellant submitted that the compensation awarded by the Commissioner is on the lower side by considering only 70% as loss of earning capacity, though the qualified medical witness deposed that the appellant is disabled to do his driving work or any other manual work. It ought have been considered 100% as loss of earning capacity.
9. The learned counsel for the respondents sought to dismiss the appeal as the compensation awarded by the Commissioner is more ought to have taken 50% as loss of earning capacity. The Commissioner has considered 70% loss of earning capacity, which is erroneous and needs to be reduced. Hence prays to dismiss the appeal by reducing the same.
10. Heard both the parties and perused records.
11. A perusal of the judgment and award and after considering the rival submission made by both the parties, I feel there is some force in the arguments addressed by the learned counsel for the respondents. The Tribunal has erred in considering 70% as loss of earning capacity instead of 50% as per medical evidence. In the circumstances, the substantial question of law as referred to above, cannot be answered in favour of the appellant.
Accordingly, the appeal is dismissed.
Sd/-
ACTING CHIEF JUSTICE HR